Appeal from the Superior Court of the District of Columbia (CA-8193-04) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ, FISHER and BLACKBURNE-RIGSBY, Associate Judges.
Appellants (plaintiffs at trial) appeal the trial court's grant of judgment to appellees as a matter of law in this medical malpractice case. Appellants argue that the trial court erred in determining that their expert witness lacked a sufficient basis upon which to testify about the national standard of care for a dilation and evacuation procedure.
We agree with appellants on this point,*fn1 but we reject appellant Francisco Camacho's argument that the trial court erred in dismissing his claim for loss of consortium. Therefore, we reverse and remand with instructions that the trial court reinstate the jury verdict on the claim for medical malpractice.
On December 27, 2001, appellants Francisco Javier Camacho and Beatriz Cárdenas went to the District of Columbia office of appellee, Scott P. Muangman, M.D., for an abortion after the 20-week fetus Ms. Cárdenas was carrying was diagnosed with Trisomy 21. Following the procedure, which appellants said was very painful and left Ms. Cárdenas feeling weak, they returned to their home in Virginia. Ms. Cárdenas testified that she was in significant pain throughout the evening. During the early hours of December 28, 2001, Ms. Cárdenas was taken by ambulance to Fairfax Hospital's emergency room, where it was discovered that she had sustained a ten-to-twelve centimeter laceration of the uterus which extended into the cervix, a four-to-five centimeter tear of the sigmoid colon, a tear of the right infundibulopelvic ligament, damage to the ovaries, significant blood loss, sepsis, and hemorrhagic/septic shock. As a result, Ms. Cárdenas underwent a hysterectomy, a bilateral salpingo-oophorectomy,*fn2 and a sigmoid colon resection with colostomy. She was released after two weeks of hospitalization, but had to return in March of 2002 for surgical reversal of the colostomy.
Appellants filed complaints for medical malpractice against Dr. Muangman and his partner in the medical office, appellee Nathan Bobrow, M.D. At trial, appellants proffered the testimony of Philippe Girard, M.D. Appellees objected that Dr. Girard did not have a basis of knowledge to testify about the national standard of care for the performance of a second trimester dilation and evacuation procedure ("D & E procedure"). The trial court initially ruled that Dr. Girard's testimony was admissible, and Dr. Girard testified that Dr. Muangman had deviated from the national standard of care by, inter alia, failing to use laminaria to dilate Ms. Cárdenas's cervix before attempting surgery.*fn3 Appellees presented expert testimony that they had acted consistent with the national standard of care. The jury returned a verdict in favor of appellants in the amount of $263,557.96. However, after appellees renewed their motion for judgment as a matter of law after the verdict, the trial court reversed its original ruling and concluded that Dr. Girard's testimony should not have been admitted to establish the national standard of care. Consequently, the trial judge set aside the verdict and entered judgment in favor of appellees.
II. Admissibility and Sufficiency of Standard of Care Testimony
"The Court of Appeals will review a motion for judgment as a matter of law de novo by applying the same standard as the trial court." Strickland v. Pinder, 899 A.2d 770, 773 (D.C. 2006). Judgment as a matter of law is proper only upon a finding that "a party has been fully heard . . . and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party." Super. Ct. Civ. R. 50 (a). Here, the trial court found, and appellants do not contest, that without the testimony of Dr. Girard, appellants could not have made a prima facie case for medical malpractice. Therefore, the principal issue for our review is whether, in deciding appellees' motion for judgment, the trial court properly determined that the testimony of appellants' expert was unqualified and insufficient to prove the applicable national standard of care.
"In a medical malpractice action, the plaintiff carries the burden of establishing . . . 'the applicable standard of care, deviation from that standard, and a causal relationship between the deviation and the injury.'" Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C. 2007) (quoting Travers v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996)). "Because these issues are 'distinctly related to some science, profession, or occupation,' expert testimony is usually required to establish each of the elements, except where the proof is so obvious as to lie within the ken of the average lay juror." Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C. 1990) (quoting District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C. 1987)).
Whether an expert is qualified to testify as to the applicable national standard of care is an issue that has received considerable attention from this court in recent years. See, e.g., Coulter v. Gerald Family Care, P.C., 964 A.2d 170, 188-203 (D.C. 2009); Hill v. Medlantic Health Care Group, 933 A.2d 314, 322-28 (D.C. 2007); Nwaneri, 931 A.2d at 470-78; Strickland, 899 A.2d at 773-74; Snyder v. George Washington Univ., 890 A.2d 237, 243-46 (D.C. 2006); Hawes v. Chua, 769 A.2d 797, 801-08 (D.C. 2001). As these cases have noted, a proper determination that an expert is qualified to testify as to the applicable standard of care does not vary depending upon whether the expert is proffered by the plaintiff or the defendant. The proffered expert's testimony "must meet basic standards of competency and relevancy," address national norms, and not be based merely on local custom or personal opinion. Hawes, 769 A.2d at 806. This requirement is founded on the prerequisite that any expert testimony not be based on mere speculation or conjecture. See Washington, 579 A.2d at 181; see also Nwaneri, 931 A.2d at 470; Strickland, 899 A.2d at 773-74; Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 367 (D.C. 1980) ("An expert witness opinion must be based on fact or adequate data. It is properly received so long as it is not a mere guess or conjecture. While absolute certainty is not required, opinion evidence that is conjectural or speculative is not permitted."). In Hawes we summarized the minimum requirements for expert testimony on the national standard of care as follows: "(1) it is insufficient for an expert's standard of care testimony to merely recite the words 'national standard of care';*fn4 (2) such testimony may not be based upon the expert's ...